Destroying Evidence

What happens if someone destroys or does not produce relevant evidence in your case?

According to Maryland Rules of Evidence, if someone who has access to relevant evidence in your case destroys or fails to produce the evidence without justification, then you may argue to the jury that the judge and jury can infer that the evidence would have been unfavorable to the party who destroyed or failed to produce it. In other words, a party cannot destroy or hide evidence that is unfavorable to them in an attempt to win their case. Destroying unfavorable evidence is unfair to the party who seeks to introduce relevant evidence of which the opposing party once had possession or who hides relevant evidence.

In order to protect a party who needs the relevant evidence, the judicial system allows a helpful inference to be made if the evidence was not preserved or produced. The inference that may be made by the judge to the jury is that the evidence that was not preserved or produced was unfavorable to the defendant/opposing party. However, this inference cannot be stated by the judge to the jury as fact. It must be merely an inference.

An opposing party is under a duty to preserve and/or produce evidence once an allegation of wrongdoing has been alleged or once that party received notice that a claim would reasonably occur. Therefore, if this duty is violated, the court may impose sanctions such as instructing the jury as to what the jury may infer. Depending on the circumstances, the case may be won by the party filing the lawsuit and despite the fact that the opposing party destroyed or failed to preserve evidence.

An example is a recent criminal case involving an alleged shoplifter. A party was charged with shoplifting at a large store. The store’s security system included surveillance cameras and recordings from the security cameras. The recordings showed that the defendant had placed an item belonging to the store in a plastic bag and left the store without paying for it. After investigating the incident and employing a private investigator, there were no witnesses found to show that the defendant went to a cash register to pay for the item but was told by the cashier that he had to go to customer service because of another issue. That issue dealt with the fact that the defendant had realized he had obtained the wrong item and brought both of the items to a cash register. Our position was that the defendant intended to pay for the item at customer service. We called the retail store and also notified the store and the prosecutor, in writing, that we were putting the company on notice to preserve the video recordings to show that the defendant sought to pay for the merchandise. We believed that the video recording would show his first effort, going to a cash register to exchange one item he had already paid for the one he placed in the plastic bag, and then travelling in the store toward Customer Service. As he was going to Customer Service, he asked a store employee where he could purchase fertilizer and flowers and was directed to go outside the store with a cart and pick up those additional items and return to the store to pay for his merchandise. As he was attempting to pick up the fertilizer and flowers, he was stopped outside the store and charged with shoplifting.

The retail store did not keep the video recordings of his movements beyond his placing the item in a plastic bag. Despite putting the store and their head office on notice to preserve the evidence, the store failed to preserve it.

The prosecutor dismissed the case and our client had his records expunged. Expunged means that all records involving the case were removed from the public and police records . My client will not be embarrassed by having a public record. This case is a good example of the destruction of evidence as there was an obligation on the part of the retail store to produce the entire video of my client’s actions in their store.

Fred Antenberg practices in the Howard County and Central Maryland region. If you have a case wherein evidence was not preserved or produced, call Fred today at 410-730-4404 for a free consultation!